Cinneadh
Right to Know CLG c/o Mr Ken Foxe and daa PLC
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136877-P1T9D3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136877-P1T9D3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether daa was justified in refusing access to environmental information related to noise issues coming within the scope of the appellant’s request on the basis that no relevant environmental information was held by or for it
7 November 2023
1. On 16 December 2022, the appellant submitted a request to daa seeking access to information related to noise issues, as follows:
• “copies of any records held by the CEO relating or referring to unforeseen noise issues arising from the north runway at Dublin Airport. This part of the request to cover the period 1 Jan 2022 to date of receipt.
• copies of any memos, reports, submissions, reviews, investigations or other such overview/ exploratory records referring to the unforeseen noise issues as per above.”
2. On 16 January 2023, daa wrote to the appellant stating “[d]ue to the complexity of the information requested in addition to the unavailability of relevant staff members over the holiday period it has not yet been possible to make a determination on this AIE request. A response on this request will be issued on or before 16th February 2023.”
3. On 3 February 2023, daa wrote to the appellant seeking clarification on “some elements of [the] query which are phrased in too general a manner.” It asked the appellant, regarding the first part of his request, to “specify what is meant by the term ‘unforeseen noise issues’” and, regarding the second part, to “specify what is meant by ‘referring to the unforeseen noise issues as per above’.”
4. The appellant responded, noting that his request had been made on 16 December 2022 and submitting that daa had “improperly sought an extension to [his] request when in fact no attempt had been made to even begin working on it until many weeks after it was first filed.” He went on to state “I am happy the request is clear enough given the matters relating to noise issues and the runway, all of which was the subject of considerable media coverage. On that basis, I expect a response by 16 February or I will be seeking internal review…”.
5. On 15 February 2023, daa issued its original decision, wherein it refused the appellant’s request. It noted that the appellant had declined to provide clarification. It stated that, having carried out an examination of material held by it for “unforeseen noise issues”, it was unable to locate any relevant records. It also explained that it was open to the appellant to refine his request and submit a new application under the AIE Regulations.
6. Also on 15 February 2023, the appellant sought an internal review of daa’s decision. In so doing, he provided a link to information that he considered to relate to media coverage on the issue concerned - here
7. On 13 March 2023, daa issued its internal review decision, wherein it affirmed its original decision to refuse the appellant’s request on the basis that no relevant information was located. It also apologised to the appellant for its failure to process his request in a timely manner and noted that it should have sought earlier clarification.
8. The appellant submitted an appeal to this Office on 27 March 2023, contending “[i]t is clear that [daa] does hold records relating to this matter given the level of publicity that arose from the noise issues on the new runway.”
9. I have been directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between daa and the appellant as outlined above and to correspondence between this Office and both daa and the appellant on the matter. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
12. The scope of this review is concerned solely with whether daa was justified in refusing access to environmental information related to noise issues coming within the scope of the appellant’s request on the basis that no relevant environmental information is held by or for it.
13. Article 7(8) of the AIE Regulations provides that where a request is made by an appellant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request. daa accepts that it did not process the appellant’s request in a timely manner. It is clear that daa did not seek clarification within one month of receipt of the request. daa informed this Office that it has since brought in a support officer to assist and provide cover for the AIE officer and has also provided training for relevant staff on handling AIE requests.
14. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations.
15. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. This Office’s approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, this Office considers that a standard of reasonableness must necessarily apply. It is not normally a function of this Office to search for environmental information.
16. As noted above, its original decision, daa outlined that, having examined material held by it for “unforeseen noise issues”, it was unable to locate any relevant environmental information. In its internal review decision daa affirmed its original decision to refuse the appellant’s request, noting that it had considered the following:
• “The steps taken by the AIE officer in processing [the] request
• The internal correspondence with relevant staff to obtain information pertaining to [the] request
• The email correspondence between [the appellant] and the AIE officer, including the request for clarification sought by the AIE officer.”
17. In its submissions to this Office, daa provided further details in support of its decision to refuse the appellant’s request on the basis that no relevant information is held by or for it. I have summarised those details below.
• daa stated that a key component of its work at Dublin Airport is to manage noise levels. It noted that it is committed to minimising the impact of noise as it operates and develops the airport. It submitted that noise from aircraft landing and taking-off is a regular occurrence and, while it is tightly managed, such noise is not unforeseen.
• daa stated that the term “unforeseen noise” used by the appellant was deemed to general. It outlined that staff were unable to determine in their searches what “unforeseen noise” covered. It also stated that the second part of the request was unclear, noting “[t]he requester asked for records ‘referring to the unforeseen noise issues as per above.’ While this was read as records held by the CEO, the AIE officer took a broader view of the request and asked all relevant staff to provide any records they held.”
• daa stated that it was determined that the request required clarification. It noted that, on 3 February 2023, it wrote to the appellant asking him to clarify the meaning of the term “unforeseen noise issues” and the reference to “unforeseen noise issues as per above.”
• daa stated that “[w]ithout the required clarification, staff were asked to carry out a search and retrieval of any records, emails, or documents” they held in relation to “unforeseen noise.” It noted that this search yielded no results.
• daa stated that on receipt of the appellant’s internal review request, the internal reviewer “carried out a full independent review and found that the decision made should be upheld.”
• daa commented that “while [its] search did not yield any results for unforeseen noise, [it] would welcome a new AIE request from [the appellant] to support him to obtain the data he is seeking.
18. It is the appellant’s position that, in light of the “publicity that arose from the noise issues” at the north runway, information relevant to his request is held by or for daa.
19. The appellant, in his internal review request, provided daa with a link to Google search results for “unforeseen noise north runway”, see: here
20. While I do not know exactly what was available at the link on the date it was sent to daa, I have filtered the results now available for the timeframe up to and including that date, 15 February 2023, see: here
21. Having examined the results, I note that they include the following links to articles, the first of which was seemingly published prior to the date of the original request:
• Newstalk – Locals furious over Dublin Airport runway noise – 1 Dec 2022 — Residents living near Dublin Airport say the noise from the new runway is “basically like a war zone over your house”.
• The Irish Independent – Dublin Airport apologises over noise as North Runway ... — 13 Jan 2023 –
Dublin Airport has apologised and said flights departing from the new North Runway will be rerouted after local communities were “unexpectedly overflown”. Missing: unforeseen | Show results with: unforeseen
22. Accordingly, while the appellant declined to respond to daa’s request for clarification, I am satisfied that by including a link in his internal review request to information which he considered to show media coverage on the underlying issue concerned, he did subsequently provide further detail regarding the information sought. I would encourage applicants to make every effort to ensure their original requests are sufficiently specific and give as much detail as possible to accurately reflect the information sought.
23. I have examined the detail at the link and it seems to me that it does set out the context to the request, providing explanatory background detail. In my view, even if daa was initially unsure as to what the appellant meant by “unforeseen noise” and “unforeseen noise issues as per above”, the detail at the link clarified the matter. Accordingly, I am satisfied that this detail should have informed the steps taken by daa to process the request at internal review stage.
24. daa indicated that only “unforeseen noise” was used as a search term and explained that there is no “unforeseen noise” at the airport. Although daa stated that the internal reviewer undertook an “independent review” and considered both correspondence with relevant staff and correspondence with the appellant, including the request for clarification, at no point did it refer to the detail at the link provided by the appellant. Indeed, there is no evidence before me to suggest that any regard was had to that detail.
25. In light of the above, notwithstanding that daa seems to have appropriately considered the second part of the request as relating to information held by all staff and not just by the CEO, it appears to me that, on the whole, daa took an unduly narrow interpretation of the appellant’s request by limiting it to its understanding of “unforeseen noise”. In my view, it ought to have taken into account the further detail provided by the appellant in his internal review request.
26. I also wish to note that while daa stated that searches were carried out by staff of records, emails and documents for relevant information they held relating to “unforeseen noise”, daa provided no further explanations relating to those searches (e.g. it did not outline which staff were involved, what type of records/documents were searched, where those records/documents were held, what search terms (other than “unforeseen noise”) were used, whether date parameters were used, etc).
27. In all the circumstances, I am not in a position to find that daa has taken adequate steps to identify and locate all relevant environmental information held by or for it. Therefore, I cannot find that section 7(5) of the AIE Regulations applies in this case.
28. I consider that the most appropriate course of action to take at this stage is to annul daa’s decision in its entirety, the effect of which is that daa must consider the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations. I appreciate that remitting the case back to daa causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance.
29. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul daa’s decision in this case. I direct daa to conduct a new decision-making process on the appellant’s request.
30. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Emma Libreri
on behalf of the Commissioner for Environmental Information